2019 PLP 2415 (YLR)

KHADIM HUSSAIN M. SHAIKH, J.

This second appeal is directed against judgment and decree dated 16.10.2012, passed by the learned District Judge, Badin, allowing Civil Appeal No.133 of 2011 re-Hamid Ahmed v. Muhammad Shafiq and others, setting aside the judgment and decree dated 13.10.2011, passed by the learned Senior Civil Judge, Golarchi at Badin, whereby F.C. Suit No.26 of 2009, re-Hamid Ahmed v. Muhammad Shafique and others for pre-emption was dismissed, decreeing the said suit.

2. Briefly, the facts of the case are that the plaintiff Hamid Ahmed filed a suit being F.C. Suit No.133 of 2011 re-Hamid Ahmed v. Shafique Ahmed and others for pre-emption and permanent injunction. The case of the plaintiff is that agricultural land bearing Block Nos.113/1 to 4, 114/1 to 4, 133/1 to 4, and 134/1 to 4 admeasuring 64-00 acres Deh Mari Wassayo No.1 Tapo Mari Wassayo Taluka Shaheed Fazul Rahu District Badin settled on water courses 9-R and 10-R Ex-Nukerji Distry, owned by defendants Nos.5 and 6 and whereas Block Nos.115/1 to 4 and 8-00 acres out of Block Nos.116/1 to 4 and Block Nos.132/1 and 2 admeasuring 32 acres of Deh Mari Wassao No.1 settled on the same water courses, which is adjacent to the suit land is owned by the plaintiff, who had passage for his tractor and transportation through the. suit land. On 16.3.2009 the plaintiff along with Qutub Ali, Shoukat Ali and Ashiq Ali was going to his land when he was allegedly prevented by the defendants Nos.1 to 4 from passing his tractor through the suit land, asking him to arrange for some other path, disclosing that they had purchased the suit land. The plaintiff then and there in presence of the witnesses made Talb-i-Muwathibat and showed his intention asking the defendants that he is ready to purchase the suit land on the same price on which they had purchased it including registration expenses, etc., as prior to them he had also requested the defendants Nos.5 and 6, but they sold out the suit land to the defendants Nos.1 to 4 without the knowledge of the plaintiff and requested the respondents Nos.1 to 4 to re-sell the same, but the defendants Nos.1 to 4 did not agree. Again plaintiff took the above named three witnesses with him and went to the house of defendants Nos. 1 to 4 at 5:30 p.m. at Chak No.58, where the defendants Nos.1 to 4 were present, and the plaintiff requested them to re-sell the suit land and made Talb-i-Ishhad by referring to the Talb-i-Muwathibat in presence of ,witnesses who also requested the defendants, but the defendants refused to re-sell the suit land. The defendants Nos.1 to 4 in order to deprive the plaintiff of his legal and preferential right of pre-emption over the suit land from defendants Nos.5 and 6 did not disclose the sale transactions for a period of eight (08) months. The plaintiff then obtained certified true copies of the registered sale deed bearing No.510 dated 21.04.2008 and registered bearing No.249 dated 09.02.2009, which revealed that the defendants Nos.1 to 4, who have got land in the same deh or on the same water courses, purchased the suit land on 12.04.2008 at the rate of Rs.23,20,000/- to the extent of 50 paisas share from both the defendants Nos.5 and

6. Hence the plaintiff filed the subject suit.

3. The defendants Nos. 5 and 6 filed their written statement, denying all the allegations and claims of the plaintiffs. further stated therein that the purchased the suit land through two registered sale deeds dated 21.04.2008 and 09.02.2009 within the knowledge of plaintiff and his family and they are in cultivating possession of the same and such khatas in the name of the answering defendants have been kept in record of rights by the Taluka Mukhtiarkar S.F. Rahu vide entry No.12 dated 03.07.2008 and entry No.46 dated 16.03.2009. The plaintiff has no concern with the suit land. The land of the plaintiff is away from the suit land and it is not in direct mohaga of the suit land, but it is intersected by a katcha path and a water course. The alleged witnesses are friends and known land grabbers of the area and have been introduced by the plaintiff only to lay his hands on the suit land. Neither the plaintiff and his alleged witnesses came to answering defendants nor did they meet them at any time. The story of Talbs has been fabricated and cooked up by the plaintiff. The plaintiff has no pre-emption right. The defendants Nos.5 and 6 have also filed their written statement, wherein they have admitted that the plaintiff is owner of adjoining immoveable property and a participator in amenities and appendages and has a right of way. The answering defendants have got the knowledge that the plaintiff has exercised his right of pre-emption over the suit land and have offered the defendants Nos.1 to 4 to purchase the suit land on the same price and same terms and other expenditure incurred by the defendants Nos.1 to 4.

4. On the divergent pleadings of the parties, the learned trial court framed the following six issues:--

1. Whether plaintiff has no right of pre-emption over the suit land?

2. Whether the plaintiff has made Talbs of pre-emption in presence of witnesses?

3. Whether the suit is not maintainable?

4. Whether the plaintiff has no cause of action to file the present suit?

5. Whether the plaintiff is not entitled to any relief as prayed for?

6. What should the decree be?

5. At the trial one Muhammad Arshad examined himself as attorney of the plaintiff at Exh.82, as P.W.1, who produced original Special power of attorney at Exh.83, agricultural pass book at Exh.84, land revenue receipts at Exhs.85/1 and 2, residence certificate as Exh.86, registered sale deed No.486 at Exh.87; P.W-2 Ali Nawaz at Exh.89; P.W-3 Ashique Hussain at Exh.90; and, then the learned counsel for the plaintiff closed his side vide statement at Exh.91. The defendant No Liaquat Ali examined himself as DW-1 at Exh.94; and then the learned counsel for the defendants Nos.1 to 4 closed their side vide statement as Exh.95.

6. Learned trial court after hearing the parties counsel dismissed the suit filed by respondent No.1/plaintiff Hamid Ahmed vide judgment and decree dated 13.10.2011. Being aggrieved by the said judgment and decree dated 13.10.2011, passed by the learned trial court the respondent No.1/plaintiff Hamid Ahmed filed appeal being Civil Appeal No.133 of 2011, re-Hamid Ahmed v. Muhammad Shafiq and others, which was decided by the learned District Judge Badin vide judgment and decree dated 16.10.2012, whereby the said appeal was allowed, the impugned judgment and decree dated 13.10.2011, passed by the learned trial court were set aside and the suit was decreed. The appellants defendants Nos.1 to 4 being dis-satisfied with the said judgment and decree, passed by the learned appellate court have preferred this appeal.

7. The learned advocate for appellants has mainly contended that the respondent No. 1/plaintiff had filed the suit for pre-emption in his personal capacity, but the plaintiff did not examine himself as a witness and instead one Muhammad Arshad had examined himself on behalf of the plaintiff as his attorney; that the plaintiff had not established the requisite demands in accordance with the pre-emption law; that the learned trial court appreciating the evidence brought on record had rightly dismissed the suit filed by the plaintiff vide Judgment and decree dated 13.10.2011, but the learned appellate court without appreciating the evidence, allowed the appeal and set aside the Judgment and decree dated 13.10.2011. passed by the learned trial court, decreeing the suit of the plaintiff vide impugned Judgment and decree dated 16.10.2012; and, that the impugned Judgment and decree passed by the learned appellate court suffer from mis-reading and non-reading of the evidence, causing mis-carriage of justice to the appellants. Learned counsel, therefore, prays that the appeal may be allowed and the impugned Judgment and decree passed by the learned appellate court may be set aside and the Judgment and decree passed by the learned trial court, dismissing the suit, may be restored.

8. The learned counsel for the respondent No. 3 has mainly contended that the plaintiff by making the demands i.e. talb-i-muwathibat and talb-i-ishhad had established his right of pre-emption; that the learned trial Court had dismissed the suit without considering the material brought on record vide judgment and decree dated 13.10.2011, but the learned appellate court has set-aside the said judgment and decree of the learned trial Court by appreciating the evidence brought on record and decreed suit. Learned counsel, therefore, prays that the appeal mad be dismissed.

9. I have considered the submissions of learned counsel for the applicant and learned counsel for the respondent No.3 and have gone through the material brought on the record.

10. Para-236 of Muhammadan, Law (By D.F. Mulla) which is relevant, is reproduced here for the sake of convenience: "Demands for pre-emption:

No person is entitled to the right of pre-emption unless:- (1) He has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talb-i-muwathibat (literally, demand of jumping, that is, immediate demand), and unless; (2) He has with the least practicable delay affirmed the intention, referring expressly to the fact that the talb-i-muwathibat had already been made and has made a formal demand:- (a) Either in the presence of the buyer, or the seller, or on the premises which are the subject of sale, and (b) In the presence of at least of two witnesses. This formality is called talb-i-ishhad (demand with invocation of witnesses).

11. The Talb-i-Muwathibat literally means immediate demand, that is commonly known as jumping demand; and foundation of claim of pre-emption rested on making an immediate declaration of intention to assert one's right (Talb-i-Muwathibat) and if the same is not done that would be fatal for whole claim of pre-emption and making of valid demands nameln the Talb-i-Muwathibat and Talb-i-Ishhad are the condition precedent to exercise of the right of pre-emption. The first one i.e. Talb-i-Muwathibat is made the moment the pre-emptor comes to know that the land on which he/she wants to assert his/her right of pre-emption has been sold and the second demand i.e. (Talb-i-Ishhad) is made after the first demand namely Talb-i-Muwathibat, in presence of the witnesses with reference to the first one that so and so has sold or purchased, as the case may be, such and such land and that he has already made his first demand (Talb-i-Muwathibat) and he is making the second demand, asking the witnesses, to be the witness to that. It is pertinent to mention here that the right of pre-emption is a feeble right and making of demands is oral process and the evidence in case of exercise of right of pre-emption being oral is required to be a direct as stipulated by Article 71 of Qanun-e-Shahadat Order, 1984, which envisages that "Oral evidence must, in all cases whatever, be direct;" And it is reiterated that oral evidence is required to be confidence inspiring and that too duly supported by the witnesses to prove such case. The onus to prove lies upon the pre-emptor to establish and prove that two demands i.e. Talb-i-Muwathibat, and Talb-i-Ishhad were validly made by the pre-emptor. It is well settled that a pre-emptor should come forward with all the details with full particulars i.e. name of informer, date, time and place of performance of Talb-i-Muwathibat as well as date of Talb-i-Ishhad, which are required to be mentioned in the plaint, so that the pre-emptor may prove the same during the trial and so also he/she may not make any departure from the pleadings by improving his/her case during the trial.

12. From a perusal of the record it would be seen that the plaintiff did not step in the witness box, but one Muhammad Arshad claiming himself to be the attorney of the plaintiff examined himself, but no valid reason for non-appearance of the plaintiff as witness has been advanced; the plaintiff/respondent No.1 Hamid Ahmed, who allegedly made first demand i.e. Talib-i-Muwathibat on 16.03.2009 filed the subject suit in his personal capacity and not through his attorney and whereas Muhammad Arshad was appointed as an Attorney after filing of the suit as is evident from title of plaint, the plaintiff's not stepping in the witness box, adversely reflects upon the case of the plaintiff in its entirety, for the right of pre-emption is a feeble right and making of demands is oral process and the evidence in case of exercise of right of pre-emption being oral is required to be a direct as stipulated by Article 71 of Qanun-e-Shahadat Order 1984, which envisages that "Oral evidence must, in all cases whatever, be direct;". Needless to add that the right to pre-empt is a personal right and Talb-i-Muwathibat being a personal act of the pre-emptor, is to be proved by him through his own statement and in such a case, in my humble view, the attorney may not be a substitute of a pre-emptor. Manifestly the evidence of the plaintiff Hamid Ahmed, which would have been the best evidence has been withheld by the plaintiff and in view of Article 129(g) of Qanun-e-Shahadat Order, 1984, adverse inference that had that evidence been produced that would have been against the pre-emptor/plaintiff can legitimately be drawn. Reliance in this context is placed in the case of Dilshad Begum v. Mst. Nisar Akhtar (2012 SCMR 1106). Furthermore oral evidence is required to be confidence inspiring and that too duly supported by the witnesses to prove such case. The onus to prove lies upon the pre-emptor to establish and prove that two demands i.e. talb-i-muwathibat, and talb-i-ishhad were validly made by the pre-emptor. It is well settled that a pre-emptor should come forward with all the details with full particulars i.e. name of informer, date, time and place of performance of Talb-i-Muwathibat as well as date of Talb-i-Ishhad, which are required to be mentioned in the plaint, so that the pre-emptor may prove the same during the trial and so also he/she may not make any departure from the pleadings by improving his/her case during the trial. From the evidence adduced on behalf of the plaintiff/ respondent No.1 Hamid Ahmed it would reveal that the plaintiffs attorney Muhammad Arshad has deposed that on 15.3.2009 they were available in their otaq where defendants Shafique, Liaquat, Sharafat and one Rafique came at the suit land. On enquiry they disclosed that they had purchased the suit land from the defendants Nos.5 and

6. On which, they said to them that they want to purchase the suit land in the same consideration, in which they have purchased; that at that time, he, Hamid, Ali Nawaz, Ashique, Shoukat were available in otaq; that then they went to the village of defendants Nos.1 to 4 at 5:00 pm, they asked them to sell the suit land to them and asked them that they had already made the demand but the defendants refused to convey the land, he did not depose that the alleged demand was made by plaintiff Hamid Ahmed, but he deposed that they made the demands, he has given the date of making demands as 15.03.2009, but the case of the plaintiff is that the date of making demands was 16.03.2009 and it is also nowhere mentioned in the plaint that attorney Muhammad Arshad was present when the alleged demands were made by the plaintiff Hamid Ahmed and even names of the PWs Ali Nawaz, Ashique and Shoukat do not find place in the plaint; PW-2 Ali Nawaz has deposed that he does not remember the date, however, it was 11:00 a.m. when he along with Hamid, Arshad and Shoukat was present in otaq, when Liaquat and Shafique (the defendants Nos.1 and 3) came at the suit land and disclosed that they had purchased the suit land from defendant No.6. Thereafter at 5:00 pm they went to the village of defendants Nos.1 to 4 and repeated the same demand already made at 11:00 a.m. but the defendant refused. And whereas PW-1 Muhammad Arshad attorney of the plaintiff stated that defendants Shafique, Liaquat. Sharafat and one Rafique came on the suit land and disclosed that they had purchased the suit land from the defendants Nos.5 and

6. The said PW Ali Nawaz, does not state about the date of making the alleged demands; he does not say as to who was the defendant to whom they made demand in the village. PW-Ali Nawaz deposed that he is residing about 40 kilometers away from the suit land; he admitted that he did not own any land; he runs shop of tyre puncture; he is relative of plaintiff; and, PW-Ashique Hussain deposed that they were sitting in otaq, when at about 11:00 a.m. defendants Nos.1 to 4 came and disclosed that they had purchased the suit land from defendants Nos.5 and 6; the plaintiff Hamid asked them that he wanted to purchase the suit land but the defendants refused; then at 5:00 pm he along with the plaintiff went to the village of defendants Nos.1 to 4 and made demand but the defendants Nos.1 to 4 refused. In cross-examination this witness deposed that his village is about 2 kilometers away from the suit land. From this evidence of the attorney and PWs it is abundant clear that they have not given their explanation of their presence at the otaq and it has also not come on record that as to at what distance the suit land was situated from the otaq. Admittedly, both witnesses of the plaintiff are not residing in the area where the suit land is situated but they are residing at different places and one of them namely Ashique is a business man having business at Golarchi and time having been disclosed by the PWs is 11:00 a.m. and 5:00 pm of the same day and their presence at the place namely otaq of the suit land has not been established.

13. Apart from the aforesaid material discrepancies, admissions, glaring contra-dictions and improvements, in the case and the evidence of the plaintiff, which are patently self-destructive and fatal to the plaintiff's case, there are many other flaws in his case, which need not to be mentioned here just to save the space.

14. In view of what has been discussed above, I am of the considered view that the respondent No.1/plaintiff has miserably failed to prove the performance of the requisite demands of pre-emption as required under the law and his suit was liable to be dismissed. The learned Trial Court considering the evidence and other aspects of the case dismissed the suit vide judgment and decree dated 13.10.2011, but the learned appellate court while passing the impugned judgment and decree dated 16.10.2012, has not considered the evidence in its true perspective and not at all attended to the aforesaid aspects of the case, fatal to the plaintiff's case in its entirety. I am of the humble view that the conclusion arrived at by the learned appellate court that the plaintiff has established the talb-i-muwathibat and talb-i-ishhad is not only erroneous, but is rather baseless and not in consonance with the record and the law laid down by the Hon'ble Superior Courts. And, thus, patently the impugned Judgment and decree dated 16.10.2012, passed by the learned appellate court, allowing the appeal, setting aside the Judgment and decree dated 13.10.2011. passed by the learned trial court, suffering from non-reading and mis-reading of evidence, being not sustainable, are liable to be set at naught. Accordingly, the instant appeal is allowed, impugned judgment and decree dated 16.10.2012, passed by the learned appellate court are set aside and the judgment and decree dated 13.10.2011, dismissing the subject suit, passed by the learned trial court are restored. The parties to bear their own costs. ZC/M-96/Sindh Appeal allowed.